FEDERAL LABOR RELATIONS AUTHORITY STATUTORY TRAINING PROGRAM

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FEDERAL LABOR RELATIONS AUTHORITYSTATUTORY
TRAINING PROGRAM

• Interference and Discrimination
• Jean M. Perata
• Deputy Regional Director
• FLRA, S.F. Region
• jperata_at_flra.gov 415.356.5000, ext. 2012

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Interference The Legal Basis

• 5 U.S.C. 7102 Employees Rights
• Each employee shall have the right to form, join,
  or assist any labor organization, or to refrain
  from any such activity, freely and without fear
  of penalty or reprisal.

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Examples of Protected Activity

• Filing a grievance
• Asserting a contractual right
• Requesting union representation
• Representing the union in a matter
• Attending union meetings
• Refusing to join a union
• Executing a dues allotment
• Testifying at an arbitration hearing
• See U.S. Dep't of the Air Force, Aerospace
  Maintenance Regeneration Ctr., Davis Monthan
  Air Force Base, Tucson, Ariz., 58 FLRA 636
  (2003) U.S. Dept of Labor, Employment
  Training Admin., S.F., Cal., 43 FLRA 1036 (1992)
  

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Free Speech Proviso

• Personal opinions are protected - 5 U.S.C.
  7116(e)
• The expression of any view, argument, opinion or
  the making of any statement which
• (1) publicizes the fact of a representational
  election and encourages employees to exercise
  their right to vote in such election,
• (2) corrects the record with respect to any
  false or misleading statement made by the person,
  or
• (3) informs employees of the Governments policy
  relating to labor-management relations and
  representation,
• Shall not, if the expression contains no threat
  or reprisal of force or promise or benefit or was
  not made under coercive conditions, (A)
  constitute an unfair labor practice under any
  provision of this chapter, or (B) constitute
  grounds for the setting aside of any election
  conducted under any provision of this chapter.

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Interference by An Agency

• It is a violation of 7116(a)(1) for an agency
  to interfere with, restrain or coerce an employee
  in the exercise by the employee of any right
  under the Statute.

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Examples of this Conduct

• Threatening employees with reprisal if they
  exercise their rights under the Statute.
  FEC, 6 FLRA 327 (1981)
• Making implied threats against union
  representatives for assisting employees in filing
  and prosecuting grievances under the negotiated
  grievance procedure. U.S.
  Penitentiary, Florence, Colo., 52 FLRA 974 (1997)

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Objective Standard

• While the circumstances surrounding the making of
  the statement(s) are taken into consideration,
  the standard is not based on the subjective
  perceptions of the employee or on the intent of
  the management representative.
• U.S. DOJ, Fed. Bureau of Prisons, FCI,
  Safford, Ariz., 59 FLRA 318 (2003) (citing Dept
  of the Air Force, Scott Air Force Base, Ill., 34
  FLRA 956 (1990)).

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Discrimination Defined

• 5 U.S.C. 7116(a)(2) It is an unfair labor
  practice for an Agency to encourage or discourage
  Union membership in a labor organization by
  discriminating in connection with hiring, tenure,
  promotion or other conditions of employment.5
  U.S.C. 7116(a)(4) It is an unfair labor
  practice for an Agency to discipline or otherwise
  discriminate against an employee because the
  employee has filed a complaint, affidavit, or
  petition, or has given any information or
  testimony under the Statute.

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DISCRIMINATION

• The same test is applied to cases alleging
  discrimination, pursuant to section 7116(a)(4) of
  the Statute, as to cases alleging discrimination
  as to section 7116(a)(2) of the Statute.
• Dept of Veterans Affairs Medical Ctr., Brockton
  and West Roxbury, Mass., 43 FLRA 780 (1991)

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Discrimination

• Evidence must initially demonstrate a prima facie
  case-
• Elements of a prima facie case
• 1. Employee was engaged in protected activity
• 2. Discriminatory action was taken against the
  employee and
• 3. Employees protected activity was a motivating
  factor in the Agencys treatment of the employee.
• Letterkenny Army Depot, 35 FLRA 113 (1990)
  (Letterkenny)

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Letterkenny Factors

• Was there protected activity?
• Was the Agency aware of the protected activity?
• Was there discriminatory action taken against
  employee?
• How were other employees who were not engaged in
  protected activity treated?
• Would the action have been taken in the absence
  of protected activity?
• Is there evidence of anti-Union animus?
• Was the protected activity a motivating factor in
  the discriminatory action?

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If Action Was Motivated by Protected Activity

• Under Letterkenny, even if the evidence shows a
  link between the protected activity and the
  action taken, no violation will be found if
• There was a legitimate justification for the
  action and
• The same action would have been taken even in the
  absence of the protected activity.

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Pretext or Mixed Motive

• If it can be shown that the reasons for taking
  the action are false or pretextual, then there is
  no legitimate justification for the action.
• In cases of mixed motive (action based on both
  lawful and unlawful considerations) the decision
  is still based on whether there are legitimate
  reasons and the same action would have resulted,
  absent protected activity.

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RELATED MATTER

• What if management takes an action against an
  employee for what the employee did or said during
  a grievance meeting.
• Is that lawful? What test should be applied in
  this situation?

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Not All Conduct involving Protected Activity Is
Protected

• Conduct that constitutes flagrant misconduct or
  otherwise exceeds the boundaries of protected
  activity loses its protection
• U.S. Dept of Agriculture, Food Nutrition
  Serv., Alexandria, Va., 61 FLRA 16 (2005) U.S.
  Dep't of the Air Force, Aerospace Maintenance and
  Regeneration Ctr., Davis Monthan Air Force Base,
  Tucson, Ariz., 58 FLRA 636 (2003)

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Flagrant Misconduct Factors To Consider

• Place and subject matter of discussion
• Whether an outburst was planned or impulsive
• Whether conduct was provoked and
• Nature of any intemperate language or conduct.
• Dep't of the Air Force, Grissom Air Force Base,
  Ind.,
• 51 FLRA 7 (1995)